HM&O Investments Pty Ltd (In Liq) v Ingram [2013] NSWSC 1778

HM&O Investments Pty Ltd (In Liq) v Ingram [2013] NSWSC 1778

The Court was not functus officio because the non-party costs application invoked a new discretion. However, the respondent companies were not shown to be the real litigants or real parties. York Precision Plastics funded the litigation by what appeared to be a genuine loan and would only be repaid from any success, while Jellicoe Nominees, Hendy Investments and Saints Management were shown only to have ultimate beneficial interests, which was insufficient. The transfers found to have been made with intent to defraud creditors did not form part of the conduct of the proceedings and were not conduct of the respondents to the motion. There was therefore no basis to make the special costs...

Jurisdiction
Australia
Judgment Date
03 December 2013
Procedural Posture
Notice of Motion for Special Costs Order Against Non Parties / Post Judgment Application After Costs Order in Proceedings
Outcome
Notice of Motion dismissed
Legal Topics
['special Order for Costs Against Non Parties' 'whether Non Parties Are the Real Litigants' 'jurisdiction to Make Costs Order' 'functus Officio']
['costs' 'practice and Procedure'] ['special Order for Costs Against Non Parties' 'whether Non Parties Are the Real Litigants' 'jurisdiction to Make Costs Order' 'functus Officio']

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Procedural Posture

Notice of Motion for Special Costs Order Against Non Parties / Post Judgment Application After Costs Order in Proceedings

Legal Issues

  1. 1 ['Whether the Court was functus officio by reason of the costs order already made.' "Whether the respondent companies should be made jointly and severally liable for the applicants' costs as non-parties under s 98(1) of the Civil Procedure Act 2005." 'Whether the respondent companies were the real litigants or real parties in the proceedings.' 'Whether the conduct of the litigation was unreasonable or improper so as to support a non-party costs order.']

Ratio Decidendi

The Court was not functus officio because the non-party costs application invoked a new discretion. However, the respondent companies were not shown to be the real litigants or real parties. York Precision Plastics funded the litigation by what appeared to be a genuine loan and would only be repaid from any success, while Jellicoe Nominees, Hendy Investments and Saints Management were shown only to have ultimate beneficial interests, which was insufficient. The transfers found to have been made with intent to defraud creditors did not form part of the conduct of the proceedings and were not conduct of the respondents to the motion. There was therefore no basis to make the special costs...

Court Disposition

Notice of Motion dismissed

Orders

  • ['The Notice of Motion of 17 May 2013 is dismissed.' 'The Court will hear argument as to costs.']